We originally posted the Hot Air report to YouTube on May 2. On May 3, after we publicized the video on nationally syndicated radio host Laura Ingraham’s program, YouTube yanked the video and replaced it with the following notice:

UMG claimed our video podcast infringed its copyrights and had submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), pressuring YouTube to pull the episode down. We concluded that this was a clear attempt to suppress the report by abusing the DMCA.

This content has been restored and your account will not be penalized.

Sincerely,

Jacob
The YouTube Team

Translation: “Neeever mind.” UMG’s Emily Litella moment is as clear a concession as any that our report was, in fact, fair use–and that UMG’s use of the DMCA to try and stifle it was, in fact, abuse.

But the shenanigans didn’t end there. After receiving the notification from YouTube that the video would be restored, we discovered a new message in place of the video. YouTube claimed that our Akon report now violated its “terms of use.” (Where have we heard that before?) EFF’s senior staff attorney, Kurt Opsahl, pressed YouTube for an explanation. On Friday, after Opsahl took the matter to one of Google/YouTube’s in-house counsels, YouTube reinstated the video–over-ruling the prior terms of use decision.

San Francisco – Universal Music Group (UMG) has backed off of its attempt to silence nationally syndicated columnist Michelle Malkin’s online criticism of one of its controversial artists after Malkin fought back with the help of the Electronic Frontier Foundation (EFF).

Earlier this month, UMG filed a baseless copyright notice regarding a recent episode of “Vent with Michelle Malkin” — an irreverent daily video podcast produced by Malkin’s conservative Internet broadcast network “Hot Air.” In the video posted on YouTube, Malkin called Universal hip hop artist Akon a “misogynist,” supporting her criticism with excerpts from Akon’s music videos as well as onstage video footage showing Akon with a teenage girl at a nightclub in Trinidad.

Despite Malkin’s legally protected fair use of the Akon footage to support her criticism, UMG claimed that the podcast infringed its copyright. UMG submitted a takedown notice under the Digital Millennium Copyright Act (DMCA), forcing YouTube to pull the episode down. However, with EFF’s assistance, Malkin filed a counter-notice with YouTube, informing the company that she was legally entitled to distribute her video. As a result, the video is back up on the site, one that has become an important forum for political speech of all kinds.

“We’re pleased that UMG has backed off its bogus copyright claim and stopped squelching Michelle Malkin’s video criticism,” said EFF Senior Staff Attorney Kurt Opsahl. “However, it remains inexcusable. UMG’s misuse of federal law made the video unavailable on YouTube for a full week, denying the Hot Air podcast access to YouTube’s extensive audience during a time when the controversy about Akon’s behavior was all over the news.”

After UMG rescinded its takedown request, YouTube briefly continued to block access to the video podcast, claiming it included a “terms of use” violation. However, after EFF contacted YouTube to discuss the alleged violation, the video was quickly returned to public view.

“My Hot Air staff and I are grateful for EFF’s invaluable aid in forcing UMG to retreat,” said Malkin. “Shame on any copyright holder who would attempt to use the DMCA to intimidate and silence critics. We hope YouTube and its corporate partners, like UMG, will think twice next time before yanking video commentary and criticism that clearly falls under fair use.”

If you are a podcaster or video content provider, and you think your work has been squelched by a DMCA-abusing entity, don’t take it lying down. Get informed and take action.

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